KINGSTON >> Over the course of 11 days, the jury in the Gilberto Nunez murder trial heard testimony from nearly 60 witnesses and was presented with more than 200 exhibits and pieces of evidence.

But in the end, it took the 12-member panel less than six hours to acquit the 49-year-old Kingston dentist of killing his lover’s husband.

“We just didn’t feel there was enough evidence,” juror Fran Kwak, a Gardiner resident, said Tuesday after the jury delivered its verdict of “not guilty” of second-degree murder.

From the outset, Orange County Chief Assistant District Attorney Maryellen Albanese, the special prosecutor in the case, told jurors she would not present any forensic evidence or eyewitness accounts that would definitively link Nunez to the Nov. 29, 2011, death of Thomas Kolman, 44, of Saugerties. But she told the jury she would present circumstantial evidence that would lead them to the conclude that, in the early morning hours that day, Nunez met Kolman in the parking lot of the Planet Fitness gym in the town of Ulster and poisoned him with a cup of coffee laced with the medical sedative midazolam.

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In her closing statement Monday, Albanese said, “Each piece of circumstantial evidence in this case is like a strand in that rope, and every strand in that rope makes the rope stronger and stronger, proving the defend guilt beyond a reasonable doubt.

“And there are a lot of stands in this rope,” she said.

Ultimately, convincing jurors all the strands of evidence could be woven together to create a rope strong enough to convict Nunez was a task Albanese was unable to accomplish.

“There were too many holes in the chain to knowingly convict,” Kwak said.

First there was the contention by Albanese that Nunez as a master manipulator who was growing increasingly despondent over his crumbling affair with Kolman’s wife, Linda, who the prosecutor claimed was ending her relationship with Nunez and making amends with her husband.

But that claim seemed to crumble when jurors were presented a series of emails and text messages between Nunez and Linda Kolman that showed in the weeks and days before Thomas Kolman’s death, Linda Kolman continued to profess her love for Nunez. Under questioning by defense attorney Evan Lipton, Linda Kolman even testified she had told her husband she planned to leave the marriage after the winter holidays.

The defense also offered emails and text messages between Nunez and Thomas Kolman — who apparently was aware of his wife’s affair — that showed the two were friends, as well as the testimony of Linda Kolman, who said that, despite the affair, her husband considered Nunez his best friend.

The defense also called into question the cause of Thomas Kolman’s death — presenting to jurors expert testimony that conflicted with the findings of the medical examiner who performed the autopsy — and questioned the accuracy of the autopsy itself.

Jurors heard from both prosecution and defense witnesses that the amount of midazolam found in Thomas Kolman’s system was not enough to kill him and heard conflicting testimony about whether the sleep apnea and heart problems from which he suffered, combined with the drug found in his system, could have caused his death.

Then there was the testimony of Grant Fredericks, a digital video analyst who looked at surveillance video from businesses near the site of Kolman’s death. He was unable to say with certainty that a vehicle traveling along the route to Planet Fitness shortly before Kolman died was Nunez’s. Fredericks also was unable to put Nunez in the Planet Fitness parking lot.

And although prosecutors alleged Nunez gave Kolman the drug-laced coffee and then reclined Kolman’s car seat, unbuttoned his shirt and undid his belt and pants button, there was no DNA or fingerprint evidence putting Nunez near Kolman. Also, medical examiner Dr. Michael Sikirica testified that while a brownish substance found in Kolman’s duodenum appeared to be coffee, he never tested that substance or the contents of Kolman’s stomach.

All told, it was enough to give jurors reasonable doubt.

“We were looking at means, we took into consideration the car, the drugs, the means, the motive, the intent, because ultimately with a murder charge, you have to have an intent,” Kwak said. “There just wasn’t enough evidence.”

“A case based entirely on circumstantial evidence is one of the most difficult cases for a prosecutor to present to a jury,” said Dutchess County District Attorney William Grady, who was not involved in the Nunez investigation or prosecution. “From the very beginning, a prosecutor has a very steep hill to climb, so to speak.”

Grady said the task is made even more daunting because the law requires that in instances where two or more inferences of equal weight can be drawn from the facts, the defendant is entitled to the benefit of the inference most favorable to him.”

“Jurors today expect physical evidence,” said Brian Rounds, a defense attorney and former prosecutor. “Every jury selection you do, the prosecutor talks about ‘CSI’ — people expect that kind of stuff, particularly when there is no direct evidence of guilt. They want there to be physical evidence.”

Rounds said that in some cases, circumstantial evidence can be better than the testimony of eyewitnesses, who can be mistaken about what they saw — or outright lie. But, he said, “reasonable doubt is based not just on the nature and quality of the evidence but also the lack of evidence.”

Though acquitted of second-degree murder, Nunez was convicted of two counts of possession of a forged instrument related to his false claim that he was a member of the CIA. He faces a sentence of up to seven years in state prison for that crime, and he also is awaiting trial on charges of grand larceny, insurance fraud, falsifying business records, perjury and making false statements in cases unrelated to Kolman’s death.

Nunez remains free on the $1 million bail he posted after being charged last fall with killing Kolman.

About the Author

Since 1990, Patricia R. Doxsey has been a reporter for the Freeman, covering politics, crime, and government affairs. Reach the author at pdoxsey@freemanonline.com
or follow Patricia R. on Twitter: @pattiatfreeman.